Challenging a Will
Posted in: Wills and Estates
Tuesday, 12 February 2019
Increasing numbers of Australians are challenging wills in Court with a significant degree of success.
A recent study* of cases relating to challenging wills found that:
• Most wills that are contested are done so under family provision laws;
• Adult children are the most common claimants in will contests, and
• Challenging a will has a high rate of success whether it is through mediation or the courts.
According to our wills and estates lawyers, a will can be contested for a number of reasons, including:
1. A claim by a person that they have not received adequate provision under a will (a family provision claim);
2. Disputing whether a person had capacity when they made their will;
3. The wording of the will may not be clear; or
4. Claiming that the will is not valid because a person was influenced or coerced to make their will in a particular way.
So it would seem that we are not entirely free to give away the family silver to whomever we want!
Our estate planning lawyers advise that the freedom to distribute our assets is balanced by laws that enable the courts to ensure that family members (and others) who fit the criteria are adequately provided for out of the estate.
If you are seeking information about the legal basis or process for challenging a will, the estate planning lawyers at CLO Lawyers can provide the guidance you need and can represent you in proceedings relating to wills and estates issues.
Challenging a Will
The will of a deceased person sometimes involves a contest in the Supreme or District court between persons interested in or affected by the will.
The Succession Act 1981 is the main legislation in Queensland regarding wills and estate administration.
Part 4 of the Succession Act 1981 relates to family provision claims. These are claims brought by a spouse (including a defacto partner), children (including step-children) and dependans who want more from the deceased’s Estate.
However, our wills lawyers point out that some of the laws regarding challenging a will in Queensland are not set out in legislation, but arise under the common law (case law precedents).
This includes challenging a will on the basis that a testator did not have testamentary capacity to make a will (for example, he or she had an intellectual or mental disability), that the testator was coerced, was unduly influenced or was under duress.
Is it the last Will of the testator?
According to our wills and estates lawyers, a person may challenge a will on the basis that it is not the last will of the testator because:
• it was revoked by the testator;
• the testator lacked mental capacity to make a will;
• parts of the will were alterations or additions made after the will was signed by the testator.
In all of these cases, the validity of the will must be determined. The court decides the issue by granting or refusing to grant probate of the will, or by revoking an existing grant.
Is the meaning of the Will clear?
Our wills and estate lawyers advise that in some cases, the meaning of expressions used in a will may be unclear.
For example, a testator may have made a gift in the will to ‘my nephew George’, when more than one nephew answers to that name, or the testator may have given ‘my house at Ipswich’ to a legatee and then sold the house after making the will and purchased a home unit at Ipswich.
It is important that an experienced estate planning solicitor is engaged to draft your will and ensure that ambiguity does not occur.
In cases where the meaning of expressions in a will are ambiguous, the executor or a person interested in the estate of a deceased person may apply to the court for a decision on the construction of the will. The court will then resolve doubt about the meaning of the will by determining the meaning of the words used by the testator.
Such an application must be made within six months of the date of death of the testator.
Can a family member can apply to the court for provision from the estate of the deceased?
Our wills and estate lawyers confirm that as a general rule, testators creating a will may leave their possessions and money to any people or causes they choose.
However, will lawyers point out that if the deceased’s spouse (or defacto partner), children or step-children will suffer hardship as a result of the deceased’s decision to give money or property to others, such a person may challenge a will and bring a court action for provision from the estate of the deceased.
The Succession Act 1981 (Qld) (Succession Act) allows courts to award eligible claimants a portion of the deceased’s estate, even though the deceased made no provision or an inadequate provision for them in the will (ss 40-44 Succession Act).
Family provision applications may be brought even if the deceased died intestate (died without a valid will), but such applications are rare.
When must a family member bring a family provision application?
Applicants intending challenging a will must give the personal representative written notice of their intended application within six months of the death of the deceased (s 44(3)(a) Succession Act). If they do not do so, the personal representative may distribute the estate which could le no property left in the estate to contest.
Applicants must then commence the legal action within nine months of the death of the deceased (s 44(3)(b) Succession Act).
No application can be commenced more than nine months after the death of the deceased unless the court grants an extension (s 41(8) Succession Act). This power is discretionary, and the outcome of an application must depend on the particular facts of the individual case.
Our wills lawyers advise that in deciding whether to grant an extension, the courts have regard to the following factors:
• Whether there is an adequate explanation for the delay;
• Whether there is any prejudice to the beneficiaries;
• Whether there has been unconscionable conduct by the applicant; and
• The strength of the applicant’s case.
Another important consideration when challenging a will is whether the estate has already been distributed to the beneficiaries.
Who may apply under the family provision legislation?
According to our wills and estates lawyers, the following persons may apply in Queensland for (but not necessarily be granted) provision from the estate:
• the deceased’s spouse—this includes a former spouse, if they were receiving or were entitled to receive maintenance from the deceased at the time of death. ‘Spouse’ includes married and de facto partners. The definition of ‘de facto partner’ includes a same-sex partner. To fall within the definition of a defacto partner, couples must have been living together on a genuine domestic basis for the two years up to the date of death (s 32DAActs Interpretation Act 1954 (Qld), s 5AA Succession Act)
• the deceased’s child—this includes any child of the deceased, including a stepchild, adopted child or a child born outside of marriage (s 40 Succession Act)
• the deceased’s dependant—this includes any person who was being wholly or substantially maintained or supported (other than for a wage or some other payment) by the deceased at the time of the deceased’s death and who is:
• a parent of the deceased
• the other parent of a surviving child under the age of 18 years of the deceased
• a person under the age of 18 years (s 40 Succession Act).
When will family provision be ordered?
Not all applicants challenging a will who feel that the deceased has not adequately provided for them may necessarily receive an order for provision from the court.
Our wills lawyers advise that the court will often look at whether the applicant has financial need in all of the circumstances, so that it can be said that the deceased failed to make adequate provision for their proper maintenance and support (s 41(1) Succession Act).
Financial need alone is not the only factor that the court considers.
An application cannot be made on the ground that the will was unfair or unjust in its distribution when, in fact, adequate provision for the applicant has been made in the will. According to our estate planning solicitors the court’s job is not to re-write the will to make a “fair” distribution, but simply to ensure that those people entitled are adequately provided for under the will.
Principles applied by the Court in family provision claims
In considering whether adequate provision has been made for the applicant’s proper maintenance and support in the context of challenging a will, a variety of considerations are relevant according to our wills and estates lawyers.
• the net value of the estate (i.e. its size after debts, funeral, testamentary and other expenses have been deducted)
• the financial position of the applicant
• the age, sex and health of the applicant
• independent means of the applicant because of any gift, transfer or other provision made by the deceased during their life, or from any other source
• the closeness of the relationship between the applicant and the deceased
• contribution of the applicant to the building-up of the deceased’s estate
• the character and the conduct of the applicant.
The court has power to refuse the application if, in its opinion, the applicant’s character and conduct disentitles them to a share or an increased share of the estate.
For more information, contact our wills and estates lawyers, Alan Cumming and Corin Sankey at CLO Lawyers on 07 4631 9000
Useful links to information regarding challenging a will in Queensland
The Succession Act 1981(Qld)
* The findings of a recent four-year study examining the issues relating to making a will, distribution of estates and challenging a will, were published in a 2015 Report “Having the Last Word – Will Making and Contestation in Australia”.
About the Author
Director | LLB, B.Bus, LLM (Applied Law)
Corin grew up in Toowoomba where he is raising a young family of his own, and engaging in a variety of professional, academic, community and sporting pursuits. With over a decade in legal practice, Corin is well established and respected in Toowoomba professional circles as an Estate solicitor and lecturer in Succession Law (Wills and Estates) at the University of Southern Queensland. Aside from his legal interests, Corin is a keen sportsman and is a former Captain and current member of the Coolaroo AFL club.
Corin holds a Bachelor of Laws and Bachelor of Business together with a Masters of Applied Law in wills and estates, for which he received the prize for best graduating student. Corin joined CLO Lawyers in 2004 when it was known as MG Crawford & Co. After completing his academic studies in 2007, Corin was admitted to practice as a Solicitor and continued to build his career with CLO Lawyers in Toowoomba.
Passionate about complex estate planning and estate litigation, Corin focuses on complex wills and estate planning advice, estate administration and estate litigation. Corin also has extensive experience in commercial matters, including the purchase and sale of businesses and commercial property, leasing, business structuring, and drafting commercial agreements. Corin has continued the firm’s long-standing commitment to community involvement with membership of local community organisations and professional networks.